Results matching “FDA ”

The Supreme Court of the State of Washington today decided Brown v. Vail, No. 83474-1, the lethal injection challenge. The court unanimously rejected the challenges and lifted the stay in Brown's case. Stays in the cases of the other two plaintiffs had been entered by other courts and were not directly at issue.

The case is procedurally unusual in that it began as a challenge to the traditional three-drug method, but the state changed to a one-drug method similar to Ohio's while the case was pending appeal.

Briefly, the holdings are:

1. The claims are not barred by the statute of limitations, which begins running when a protocol is amended.

2. The DoC's promulgation of the protocol is not in excess of its authority delegated by the statute. The DoC is charged with the duty to carry out lethal injections, which implicitly delegates authority on the details. Procedurally, the DoC is exempt from the Administrative Procedure Act (APA), but the availability of judicial review is a sufficient procedural safeguard.

3. The court rejects the claim under the drug laws as not justiciable. It is up to FDA or DEA to enforce the drug laws (and there probably is no violation anyway).

4. The challenge to the three-drug protocol is moot, and any challenge to the one-drug protocol does not have enough in common with the challenge in the trial court to consider in this case. "In short, there has been no trial on the constitutionality of the new one-drug protocol, and we cannot hold such a trial on appeal."

This decision does not preclude a new challenge to the one-drug protocol, but it is hard to see a viable challenge there. Ohio has been using it without significant problems.

Thanks to "notablogger" for the tip.

Cal Coburn Brown, BTW, is long overdue for his appointment with eternity. In his case, like so many others, "By not according the required deference, the [Ninth Circuit] Court of Appeals failed to respect the limited role of federal habeas relief in this area prescribed by Congress and by [the Supreme Court's] cases." Uttecht v. Brown, 551 U.S. 1, 10 (2007). The Ninth's opinion on remand is here.

Rachel La Corte has this story for AP.

Ohio Murderer Executed:  Darryl Durr, convicted of the 1988 kidnap and murder of 16-year-old Angel Vincent, was put to death this morning in Ohio.  A story by Columbus Dispatch newsman  Alan Johnson reports that Durr was pronounced dead at 10:36 a.m., eleven minutes after receiving a single dose of anesthesia as prescribed under the state's new lethal injection process.  In last minute appeals,  Durr's legal team claimed that the single drug process was not FDA approved and that their client might have an allergic reaction.  The ACLU also argued for a stay claiming that Durr was unconstitutionally denied a DNA test of the victim's necklace which could have implicated someone else in the killing.  Durr was charged with Vincent's murder after his arrest for raping two other young women.  His ex-girlfriend, and the mother of his child, testified to seeing Vincent bound and gagged in Durr's car shortly before her January 1988 disappearance, and that he later told her that he had "wasted" the girl, choking her to death with her necklace.  The girl's badly decomposed body was found in a park three months later.   

Gang Sweep Nets 282 in San Diego:  Union Tribune news writer Debbie Baker reports that a multi-agency operation in San Diego last weekend resulted in nearly 300 suspected gang members being arrested.  The sweep, which included officers from the Highway Patrol, several local police agencies, the Border Patrol, ATF, INS and the U.S. Marshall Service was initiated to disrupt San Diego area gangs that are affiliated with Mexican gangs in cross-border drug and human smuggling.  In addition to parole, drug, and weapons violations, several of those arrested were being referred to immigration authorities.   

While looking for something else, I came across a transcript of Professor John McAdams' testimony to the Senate Judiciary Committee, Senate Hearing 109-540, Feb. 1, 2006. I've copied it in full after the jump. Some of the numbers are a bit out of date, but the main points remain valid.

Freakanomics Blog Takes a Look at How Justice Kennedy Could Vote:  On the New York Times' Freakanomics Blog Ian Ayers wondered whether prediction markets or super crunching of numeric data would better predict how Justice Kennedy would vote.  Ayers compared Josh Blackman's SCOTUS fantasy league, a traditional "wisdom of the crowds" predictor, with a statistical algorithm developed by four professors.  The comparison inspired Ayers to create his own Justice Kennedy Prediction Tool that allows users to plug in answers for six questions (such as "the ideological direction of lower court decision") and receive predictions of whether Kennedy will affirm or reverse the lower court opinion.  Josh Blackmun used the predictor to see if Kennedy would vote to affirm the lower court in Maryland v. Shatzer (CJLF brief available here) and found that Kennedy would vote to affirm.  Only 43% of FantasySCOTUS.net members agreed.  For more on Justice Kennedy and his judicial philosophy check out Lyle Denniston's book review of Justice Kennedy's Jurisprudence: The Full and Necessary Meaning of Liberty by Frank J. Colucci. 

Terrorist Attempt Demonstrates It's Time We Started "Getting Serious About Terrorism":  Umar Farouk Abdulmutallab's bombing attempt has inspired Volokh Conspiracy blogger David Bernstein to comment that "[e]ver since 9/11, I've had the feeling that the U.S.'s domestic counter-terrorism efforts, including the Patriot Act, various airport security measures, and the like, have not been especially serious."  He believes "the U.S. could take some obvious counter-terror measures that don't even seem to have been seriously considered."

Saving the Tough Cases for Last:  On How Appealing, Howard Bashman posts a link to Michael Doyle's McClatchy Newspapers article "Supreme Court has saved toughest cases for second half." Doyle writes that when the Court returns for oral arguments on January 11, 2010, it will have decided only four cases "none dealing with the cases for which the term is likely to be remembered."  Left undecided are questions about whether the government violates the First Amendment when it bans corporations from spending their own money on political campaigns, and whether states violate the Second Amendment when they ban gun possession.  He writes that as these issues are decided, we are sure to learn more about the Supreme Court itself.  For example, will Justice Stevens retire in 2010?  And, how will Justice Sotomayor embrace her role as the newest Supreme Court Justice?

Counsel's Misadvice Has Its Day In Court:  At SCOTUSblog, Anna Christensen summarizes yesterday's oral arguments in Padilla v. Commonwealth of Kentucky, a case addressing whether the Sixth Amendment provides a remedy to defendants who have been misadvised as to immigration consequences by their attorneys.  Christensen writes that Padilla's attorney, Stephen Kinnaird, took the stance that Padilla should get relief because any advice given to a defendant by his attorney with regard to a guilty plea affects criminal liability.  She writes that Supreme Court Justices expressed concern such a ruling would place a burden on courts to inquire into the circumstances of every guilty plea.  Michael Dreeben, Deputy Solicitor General, argued in favor of affirming Kentucky's holding.  He argued that the Sixth Amendment does not entitle a defendant to advice regarding potential immigration consequences in the first place.  Christensen also reports that Kentucky's attorney, Wm. Robert Long, spent much of his time "respond[ing[to a series of questions concerning the 'professional norms' governing attorney conduct."  He argued that Strickland v. Washington treats "professional norms" as guidelines, and not as hard, and fast rules.  Adam Liptak also reports on yesterday's oral arguments in the New York Times. He believes the Justices were "sympathetic," but "uncertain about whether they could fashion a legal rule that would address extreme cases without causing turmoil in the criminal justice system." Yesterday's News Scan provides some background on Padilla's claim. 

Death Penalty Support Remains Strong:  Yesterday, Gallup released the results of its annual Crime Survey and found "that 65% of Americans continue to support the use of the death penalty for persons convicted of murder, while 31% oppose it..."  Today, on Sentencing Law and Policy, Doug Berman posts some of his highlights from the report.  According to Berman, "Gallup's death-penalty data stretch back more than seven decades," and as early as 1936, "59% of Americans supported the use of the death penalty in cases of murder, compared to 38% who opposed it[,]" -- numbers that aren't too far off recent results.  Another interesting finding is that 49% of Americans say the death penalty is not imposed often enough, 24% say it is imposed "the right amount," while 20% say it is imposed too often.  

Federal Forfeiture Argument at the Supreme Court:  At Wall Street Journal's Law Blog, Jennifer Forsyth writes that today, the Supreme Court tackled the issue of whether owners of assets that have been seized are entitled to a more prompt hearing to make a case that they should get their property back.  The case, Alvarez v. Smith, arose from the Seventh Circuit's holding that the Constitution requires owners to get a more timely chance to reclaim their property.  In other words, evidence seized as part of a drug bust should not be held for three years before someone gets their car back.  Forsyth notes that this Seventh Circuit decision "features an interesting Sonia Sotomayor twist."  Apparently, Justice Sotomayor struck down New York City's forfeiture system when she sat as a Second Circuit judge.

A Familiar Death Penalty Challenge from 1983:  At Bench Memos, Ed Whalen's "This Day in Liberal Judicial Activism" reports on the 1983 D.C. Circuit court finding that a state [that] carries out capital punishment by lethal injection, must have the drugs deemed "safe and effective" for that use by the Food and Drug Administration.  Then-Judge Scalia dissented from the decision, and the the Supreme Court unanimously reversed the holding to rule that the FDA's decision not to institute enforcement proceedings was not judicially reviewable.  

Serial Rapist Commits Suicide as Police Close In: After nine long months of pursuing a serial rapist that left at least 9 victims in his wake, Prince George's County (MD) police were ready to make an arrest. But Mark Antonio Humphries, also known as the "Craigslist Serial Rapist", was always one step ahead of the police. Following a failed sting, police tracked Humphries to a hotel room, where he killed himself. Aaron C. Davis has the story for the WA Post.

Hamdan Trial Intended to Establish Credibility: While Salim Ahmed Hamdan, bin-Laden's former driver, is not a high-ranking al-Qaeda figure, his trial is still a landmark because prosecutors hope to establish the legitimacy of the military tribunal process. According to Jerry Markon's report for the WA Post, Hamdan's trial has gone according to plan so far, with experts saying that the prosecution has effectively established Hamdan's material support of terrorism.

Crime Rate Analysis Complicated by Data Collection Methods: Bernie Magnan's article for the Vancouver Sun reveals that the problem of accurate data collection for crime statistics is not just a problem in the US. Two different measures of crime are collected in both the US and Canada, one through police reports and one through victim surveys. Not surprisingly, many victims don't report crimes to the police, and a large discrepancy often exists between the two methods.

Scott Gottlieb had this editorial in yesterday's Wall Street Journal discussing the Justice Department's recent criminal prosecutions of pharmaceutical companies for marketing prescription drugs to physicians for "off label" uses. Ted Frank gives his views as well Ed Silverman. Both make good points and there's much to dislike about the heavy handed use of criminal sanctions to enforce corporate behavior in these cases. Yet, Gottlieb's essay falls short.

There is no question that off label uses of pharmaceutical drugs is both endemic and necessary. Moreover, as Daniel Carlat has emphatically suggested finding physician education not sponsored by the pharmaceutical industry is almost impossible; physicians rightly or wrongly rely on drug companies to inform them about the latest developments in pharmaceuticals. But when drug company representatives enter the realm of advising doctors on non-FDA approved uses they are indeed entering treacherous territory. Drug representatives, on the whole, have no medical training and are merely passing along company script when advising physicians about medications. This may be fine when we're talking about FDA approved uses; after all these uses were subjected to rigorous formal trials, peer review, and extensive overview by the FDA. Off label uses are exactly that: not used in conjunction with the science that supports their official use, and hence, almost devoid of the review that gives us assurances that the medicines are safe and effective. As such, the FDA concern about this practice is justified albeit the criminal path may be the wrong method to correct it by.

In 2004, Congress enacted a victims' rights statute for federal criminal cases, 18 U.S.C. § 3771. Among the rights are, in subd. (a)(7), "The right to proceedings free from unreasonable delay." Unlike many victims' rights statutes, this one actually has an enforcement provision, with a procedure for a petition for writ of mandamus by the victim in the event rights are denied and a 72-hour deadline to decide the petition.

On October 20, the Ninth Circuit announced proposed rules for a special caption on any such petition and notice by telephone, to help it comply with the 72 hour requirement. The proposed rules have a short comment period, ending November 3.

The rules are sensible, but why the rush now, when this statute has been in effect for two years? Well, it just might have something to do with the Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-248, § 212 (July 27, 2006), which extends both the right and the remedy to habeas corpus proceedings. The right is actually not new in capital cases, as the Supreme Court set down a rule almost 15 years ago, "In a capital case, the grant of a stay of execution directed to a State by a federal court imposes on that court the concomitant duty to take all steps necessary to ensure a prompt resolution of the matter, consistent with its duty to give full and fair consideration to all of the issues presented in the case." In re Blodgett, 502 U.S. 236 (1992). However, in the Ninth Circuit, this rule has not been honored in the breach, and there has been no observance. Could it be that now that Congress has enacted a rule with some teeth, they are anticipating a flood of mandamus petitions? Might that anticipation be the result of awareness that they have been flouting the Blodgett rule the whole time?

Meanwhile, back at the ranch, the Stockton Record reports that the judge in the Michael Morales injection case has granted an extension to Morales's lawyers, further delaying justice in a case where it is already two decades overdue.